Omissions Flashcards
Omissions
General rule- D cannot be criminally liable for a failure to act, as there is no general duty to prevent harm (R v Smith (William)).
* Omission, without a duty, will not create an indictable offence.
What must the prosecution prove in order to secure conviction based on a failure to act?
o The crime is one capable of being committed by omission-some offences such as unlawful act manslaughter can only be committed by an act (R v Lowe).
o Accused was under a legal duty to act.
o Accused breached hat duty.
o Breach caused the AR of the offence to occur.
o Should the offence so require, the accused had the required mens rea.
Statutory/Contractual duties (omission)
Where a failure to fulfil a contractual term poses a risk of death, a duty to act is imposed.
* railway employee neglected to close gate to prevent railway line being crossed when train was coming.
* Can also include duty to act by virtue of position/stemming from contractual obligation-police officer saw man being beaten and did not intervene (R v Dytham).
Special relationship (omission)
Duty may arise from a close relationship, though it is likely this will only extend to parents/guardians and young children.
* Can also include doctors and patients and spouses.
* R v Gibbins and Proctor- father and partner intentionally starved man’s child to death-father convicted of murder as he was under a duty as child’s father, partner liable as she had assumed responsibility
voluntary assumption of responsibility (omission)
Where an individual takes steps to assume responsibility for another who is unable to care for themselves due to, for example, age or illness.
* Examples include caring for a helpless person and allowing them to die, looking after family and trying to revive someone or moving them if they are injured.
* R v Stone and Dobinson- D’s sister came to live with D and his partner, both D and sister were mentally impaired, and V suffered from anorexia-couple initially cared for V, but her condition deteriorated and couple were unable to care, stopped caring for her and V died-couple convicted of gross negligence manslaughter.
creation/contribution to a dangerous situation (omission)
where D inadvertently creates dangerous situation he is under. duty to rectify that situation
* If a person accidentally started a fire in the house, the person has a duty to take reasonable steps to counteract the dangerous situation created.
* The steps need only be reasonable, so a person would not be expected to risk their own life to save the lives of others, but they would be expected to take reasonable steps, such as summoning help, warning any occupants of the house that it is on fire, and so on.
Omissions and causation
- If D had acted, D could have made a causal difference.
- D cannot cause by omission.
- D can fail to uncause when D has a duty to uncause but this is different to causing.
- For example, if V self-injects dangerous drugs into their own arm and suffers an overdose, the cause of V’s death is their own act of self-injection. The drugs are causing V to die. But if the supplier of the drug is present when V overdoses, the supplier will have a duty to try to uncause what V has caused.
